HBA-GUM, KMH H.B. 1663 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 1663 By: Naishtat Judicial Affairs 8/2/1999 Enrolled BACKGROUND AND PURPOSE Provisions relating to guardianships were separated from provisions relating to the administration of an estate in 1993, by the 73rd Legislature. Prior to the 76th Texas Legislature, the procedure for commencing and terminating a guardianship was similar to the procedure of a trial. For example, an interested party, including the proposed ward, could contest an application for guardianship either in a trial to the bench or to a jury and the rules of evidence used in a trial under this code were the rules of evidence which apply to a trial in a district court. H.B. 1663 provides rules of procedure specific to the restoration of a ward's capacity or the modification of a guardianship. This bill also subjects a court investigator to the duties required by this code. Additionally, this bill authorizes a ward to retain an attorney and the attorney to be compensated from the ward's estate, if appropriate. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 23.102, Government Code, to provide that a trial court should give precedence in setting matters before the court to matters involving the complete restoration of a ward's capacity or modification of a ward's guardianship. SECTION 2. Amends Sections 642(a) and (b), Probate Code, to clarify the term guardianship proceeding for the purposes of this section to include a proceeding for complete restoration of a ward's capacity or modification of a ward's guardianship. Prohibits a person who has an interest that is adverse to a proposed ward or incapacitated person from contesting an application for complete restoration of a ward's capacity or modification of a ward's guardianship. SECTION 3. Amends Section 648A(b), Probate Code, to subject a court investigator to the duties required by this code. SECTION 4. Amends Section 682, Probate Code, to delete language requiring an application for a guardianship to state the nature and description of any guardianship of any kind existing for the proposed ward in this state. Deletes language requiring the application to state the requested term of the guardianship. Redesignates existing Subsections (10)-(16) as Subsections (9)-(15). SECTION 5. Amends Section 694A, Probate Code, as follows: Sec. 694A. New Title: COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP. Authorizes a person to file a written application, rather than a petition, with the court for an order under this section. Modifies the language of a finding under this section to state that the court finds that the ward is no longer an incapacitated person, rather than no longer needing a guardianship. Modifies the language of a finding under this section to state more specifically the capacity the ward lacks. Authorizes only a ward to request an order under this section by an informal letter to the court. Requires the court to appoint a court investigator or guardian ad litem to file an application on the ward's behalf, upon receipt of an informal letter under this section. Authorizes a guardian ad litem appointed under this section to also be appointed as attorney ad litem under Section 694C of this code. Requires citation to be served on the ward's guardian and on the ward if the ward is not the applicant, when an application is filed under this section. Prohibits a person from reapplying for complete restoration of a ward's capacity or modification of a ward's guardianship before the first anniversary of the date of the hearing on the last preceding application, except as otherwise provided by the court on a showing of good cause by the applicant. Makes conforming and nonsubstantive changes. SECTION 6. Amends Subpart A, Part 3, Chapter XIII, Probate Code, by adding Sections 694B through 694K, as follows: Sec. 694B. CONTENTS OF APPLICATION. Provides that an application filed under Section 694A must be sworn to by the applicant. Sets forth the prescribed content of an application under Section 694A. Sec. 694C. APPOINTMENT OF ATTORNEY AD LITEM. Requires the court to appoint an attorney ad litem to represent a ward in a proceeding for the complete restoration of the ward's capacity or for the modification of the ward's guardianship. Requires an attorney ad litem appointed under this section to represent the ward only for purposes of the restoration or modification proceeding, unless otherwise provided by the court. Sec. 694D. HEARING. Requires the court to consider at a hearing under this subpart only evidence regarding the ward's mental or physical capacity at the time of the hearing that is relevant to the restoration of capacity or modification of the guardianship, as appropriate. Places the burden of proof on the party who filed the application. Sec. 694E. FINDINGS REQUIRED. Provides that a court must find by a preponderance of the evidence that the ward is no longer a partially or fully incapacitated, before ordering the settlement and closing of the guardianship under an application filed under Section 694A. Provides that a court must find by a preponderance of the evidence that the current nature and degree of the ward's incapacity warrants modification of the guardianship, before ordering the powers of the guardian, or the rights of the ward, to be modified. Sec. 694F. EXAMINATIONS AND REPORTS RELATING TO COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP. Prohibits a court from granting an order completely restoring a ward's capacity or modifying a ward's guardianship under an application filed under Section 694A, unless in addition to other requirements prescribed by this code, the applicant presents to the court a timely written letter or certificate from a physician licensed in this state which is dated as prescribed. Sets forth the contents of such a letter or certificate. Authorizes the court to appoint the necessary physicians to examine the ward in the same manner and to the same extent as a ward is examined by a physician under Section 687 (Examinations and Reports) of this code, if deemed necessary by the court. Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY. Provides that an order restoring the ward's capacity must contain findings of fact with prescribed specificity, require the guardian to immediately and appropriately settle and close the guardianship, and require the clerk to subsequently revoke letters of guardianship. Sec. 694H. MODIFICATION OF GUARDIANSHIP. Provides that an order modifying the guardianship must contain findings of fact with prescribed specificity; set forth specific powers, limitations, or duties of the guardian, including the areas of protection and assistance to be provided to the ward; any limitation of the ward's rights; and require the clerk to modify the letters of guardianship to conform with the order. Sec. 694I. DISMISSAL OF APPLICATION. Requires the court to dismiss an application if the court finds that no modification is warranted or the capacity of the ward has not been restored. Requires the court upon dismissal to enter an order which contains findings of fact with prescribed specificity. Sec. 694J. CONTENTS OF ORDER. Sets forth the required contents of an order entered with respect to a request made under Section 694A to completely restore a ward's capacity or modify the guardianship. Prohibits the court in an order described by this section from granting to or requiring from one guardian powers or duties which have been granted to or required from another guardian. Sec. 694K. ATTORNEY RETAINED ON WARD'S BEHALF. Authorizes a ward to retain an attorney for a proceeding involving the complete restoration of the ward's capacity or modification of the ward's guardianship. Authorizes the court to order that compensation for services provided by an attorney retained under this section be paid from funds in the ward's estate only if the court finds that the attorney had a good-faith belief that the ward had the capacity necessary to retain the attorney's services. SECTION 7. Provides that this Act applies to applications for the appointment of a guardian, restoration of a ward's capacity, or modification of a guardianship, in which a final determination has not been made by the court. Provides that an application filed before the effective date of this Act must be conformed in accordance with the changes in the law made by this Act. SECTION 8. Effective date: September 1, 1999. SECTION 9. Emergency clause.